Town of Highland Park v. McCullers

• Decision Date: 29 June 2021
• Docket Number: 05-19-01431-CV
• Citation: 646 S.W.3d 578
• Parties: TOWN OF HIGHLAND PARK, Appellant v. Tiffany Renee MCCULLERS, et al., Appellees
• Court: Texas Court of Appeals

646 S.W.3d 578

TOWN OF HIGHLAND PARK, Appellant
v.
Tiffany Renee MCCULLERS, et al., Appellees

No. 05-19-01431-CV

Court of Appeals of Texas, Dallas.

Opinion Filed June 29, 2021

John Francis Roehm III, Thomas P. Brandt, Dallas, for Appellant.

Stephen M. Halbeisen, Dallas, for Appellee.

Before Chief Justice Burns, Justice Pedersen, III, and Justice Goldstein

Opinion by Justice Pedersen, III¹

This is a tragic case. Appellees sued, among other defendants, the Town of Highland Park, Texas (the "Town") asserting negligence and premises liability claims in connection with the death of Officer Calvin Marcus McCullers. The Town filed a plea to the jurisdiction, which the trial court denied. After reviewing the parties’ briefs and the record, we reverse the trial court's orders denying the Town's plea to the jurisdiction. We dismiss Appellees’ claims against the Town for want of jurisdiction.

I. BACKGROUND

A. July 4–5, 2016

At times, the Town's Department of Public Safety (Town DPS) provides and coordinates opportunities for peace officers to perform extra duty work at the request of the Town's residents and property owners. On July 4, 2016, James Morden, a public safety officer with the Town, offered a security service assignment to Southern Methodist University ("SMU") police officer Calvin Marcus McCullers ("Officer McCullers"). Officer McCullers accepted the assignment to guard a private residence located at 4100 St. Johns Avenue (the "Property") that was under construction.² The Property is close to the Wycliff Avenue Dam (the "Dam").

Officer McCullers arrived at the Property on July 4, 2016, at 11:24 p.m. and sat post in his vehicle. Sporadic, heavy rain began to fall. At about 12:10 a.m. on July 5, 2016, Officer McCullers backed his car to the corner of the residence. Sporadic, heavy rain continued to fall, and Officer McCullers remained in his vehicle. At 12:40 a.m., the National Weather Service issued a severe thunderstorm warning for "Dallas County in North Central Texas." At 1:04 a.m., the National Weather Service issued a flood advisory—"urban and small stream flood advisory for ... Dallas County in North Central Texas." At 1:28 a.m., water spread across the area where Officer McCullers was parked. Officer McCullers moved into the passenger seat of his vehicle. At 1:39 a.m., Officer McCullers called 911 for assistance and spoke with the dispatcher for the Town DPS; at that

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time, water rose up the sides of his vehicle. Seconds later, Officer McCullers opened the passenger door and stepped out of the vehicle. Officer McCullers lost his footing, and the water swept him and his vehicle over an embankment at the edge of the Property.

At 1:40 a.m., the Town DPS dispatched a rescue response, but it could not access the Property due to the high, swift water. The Town DPS contacted Dallas Fire Rescue, who immediately sent a swift water rescue team to the Property. The Town DPS reached the Property at about 2:00 a.m. to search for Officer McCullers, but it found no sign of him or his vehicle. At this time, Dallas Police Department performed several helicopter sweeps to search for Officer McCullers and his vehicle but could not find either. In the early afternoon of July 5, 2016, Officer McCullers's vehicle was found submerged in Turtle Creek, south of Stonebridge Drive in Dallas. On August 26, 2016, Officer McCullers's body was recovered nearly three and a half miles downstream of the Property on the bank of the Trinity River.

B. Procedural History

On July 5, 2018, Appellees filed suit against the Town. Appellees amended their petition to assert tort claims against the Town on the theories of (i) negligence, based on a failure to warn Officer McCullers about the possibility of flooding in connection with the coordination of the security service assignment on the Property, (ii) premises liability, based on the knowledge of the Dam, thunderstorm warning, and flood advisory creating a dangerous condition, and (iii) negligence, based on the use and condition of the Dam.

The Town filed a plea to the jurisdiction asserting governmental immunity. In February 2019, the Honorable District Judge Gena Slaughter heard this plea to the jurisdiction, which resulted in the parties’ conducting additional discovery on jurisdictional issues. The Town thereafter filed a supplemental plea to the jurisdiction, which the Honorable Associate Judge Monica Purdy heard on August 9, 2019.³ On October 11, 2019, Associate Judge Purdy entered an order denying the Town's plea to the jurisdiction. This appeal followed.⁴ On November 11, 2020, we held oral argument on the case, and it was submitted.

On March 26, 2021, our Court created binding precedent in Hull v. Ocwen Loan Servicing, LLC , No. 05-20-00731-CV, 2021 WL 1152900, at *1 (Tex. App.—Dallas Mar. 26, 2021, no pet. h.). Hull addressed whether an appeal was premature when a party appealed an associate judge's summary judgment order—which was neither a default nor an agreed order—under Texas Government Code § 54A.117. Hull , 2021 WL 1152900, at *1 ; see TEX. GOV'T CODE ANN. § 54A.117.⁵ We held that, because the associate judge's order was not ratified by the referring court by signature under Texas Government Code § 54A.116, the

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appeal was premature. Hull , 2021 WL 1152900, at *3 ; see GOV'T CODE § 54A.116(b).⁶

Here, as in Hull , the Town appealed an associate judge's order, which was neither agreed, a default, nor ratified by the referring court. However, the appellate timetable does not begin to run on such an order until it has been signed by the referring court. Hull , 2021 WL 1152900, at *1–2. In accordance with Hull , we abated this appeal to afford the parties an opportunity to obtain a signed order by the referring court. We ordered the district clerk to file a supplemental clerk's record containing either (i) a copy of the referring court's order or (ii) a written verification that no order was signed. On June 17, 2021, District Judge Slaughter entered an order denying the Town's plea to the jurisdiction, and the district clerk filed an according supplemental clerk's record. We reinstated this appeal on June 21, 2021.

II. ISSUES RAISED

The Town raises four issues on appeal:

1. Whether the trial court lacked subject-matter jurisdiction over Appellees’ claims against the Town because Appellees failed to demonstrate a waiver of the Town's entitlement to governmental immunity.

2. Whether the trial court lacked subject-matter jurisdiction over Appellees’ premises defect claim because Appellees failed to demonstrate a waiver of the Town's entitlement to governmental immunity.

3. Whether the trial court lacked subject-matter jurisdiction over Appellees’ negligence claim based on use or condition of real property because Appellees failed to demonstrate a waiver of the Town's entitlement to governmental immunity.

4. Whether the trial court lacked subject-matter jurisdiction over Appellees’ negligence claim based on the Town's coordination of off-duty law enforcement services.

III. STANDARD OF REVIEW

Subject-matter jurisdiction is essential to the authority of a court to decide a case. Tex. Ass'n of Bus. v. Tex. Air Control Bd. , 852 S.W.2d 440, 443 (Tex. 1993). Subject-matter jurisdiction is never presumed and cannot be waived. Id. at 443–44. A plea to the jurisdiction is a dilatory plea, the purpose of which is to defeat a cause of action based on lack of subject-matter jurisdiction without regard to the merits of the claim. Town of Fairview v. Lawler , 252 S.W.3d 853, 855–56 (Tex. App.—Dallas 2008, no pet.) (citing Bland Indep. Sch. Dist. v. Blue , 34 S.W.3d 547, 554 (Tex. 2000) ). A trial court's ruling on a plea challenging subject-matter jurisdiction is a question of law and, consequently, reviewed de novo. City of Dallas v. Redbird Dev. Corp. , 143 S.W.3d 375, 380 (Tex. App.—Dallas 2004, no pet.) (citing Mayhew v. Town of Sunnyvale , 964 S.W.2d 922, 928 (Tex. 1998) ).

A plea to the jurisdiction may challenge either the pleadings or the existence

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of jurisdictional facts. Tex. Dep't of Parks & Wildlife v. Miranda , 133 S.W.3d 217, 226–27 (Tex. 2004). Should a plea to the jurisdiction challenge the existence of jurisdictional facts, we consider relevant evidence submitted by the parties, when necessary, to resolve the jurisdictional issues raised. Id. at 227. In such case, we are not bound by the plaintiff's factual allegations. City of Dallas v. Hughes , 344 S.W.3d 549, 553 (Tex. App.—Dallas 2011, no pet.). This standard mirrors our summary judgment standard under rule 166a of the Texas Rules of Civil Procedure, and it places the burden on the plaintiff to allege facts that affirmatively demonstrate the trial court's jurisdiction. Miranda , 133 S.W.3d at 228 (referring to TEX. R. CIV. P. 166a).⁷ The governmental unit then has the burden to assert and support its contention, with evidence, that the trial court lacks subject-matter jurisdiction. City of Dallas v. Heard , 252 S.W.3d 98, 102 (Tex. App.—Dallas 2008, pet. denied) (citing Miranda , 133 S.W.3d at 228 ). Should the governmental unit meet that burden, the plaintiff must raise a material fact issue regarding jurisdiction to survive the plea to the jurisdiction. Id. (citing Miranda , 133 S.W.3d at 228 ).⁸ In our review, we construe the pleadings liberally in favor of the plaintiff and look to the plaintiff's intent. Id.

IV. DISCUSSION

A. Governmental Immunity

Under the common-law doctrine of sovereign immunity, the state cannot be sued without its consent. City of Houston v. Williams , 353 S.W.3d 128, 134 (Tex. 2011) (citing Tooke v. City of Mexia , 197 S.W.3d 325, 331 (Tex. 2006) ). Sovereign immunity and governmental immunity are two related common-law doctrines that protect the government from suit. Harris Cty. v. Annab , 547 S.W.3d 609, 612 (Tex. 2018).⁹ The purpose of governmental immunity is pragmatic: to shield the public from the costs and consequences of improvident actions of their governments. Tooke...